Common use of Travaux Préparatoires Clause in Contracts

Travaux Préparatoires. The question of compensation for mental injury was briefly discussed for the first time in the context of preparations for the 1955 Hague Protocol. During the preparatory proceedings, the International Institute for the Unification of Private Law commented that: ‘the expression “bodily injury” should be understood to mean any harm to the physical or mental integrity of the person’.118 During the 1955 Hague Conference, the delegation for Greece wished to make it clear whether injury not connected to physical damage, such as fear, could be compensated. He suggested the addition of the following sentence to Article 17: ‘…or any other mental or bodily injury suffered by 116 See, Huib Drion, Limitation of Liabilities in International Air Law 125 (Springer, 1954); Xxxxxx Xxxxxxxx, National Airlegislations and the Warsaw Convention 269 (Springer, 1937); Xxxxxxxxx Xxxxxx, Liability In International Air Transport 125 (Kluwer 1977); Xxxx Xxxxxx- wicz, The Liability Regime of the International Air Carrier - A Commentary on the Present Warsaw Convention System 187 (Kluwer, 1981). See also, the decision of the Supreme Court of the United States, Xxxxxxxxx, Individually and as Executrix of the Estate of Kole, et. al. v. Korean Air Lines Co, Ltd., 516 U.S. 217 (1996), at 225. Compare this with the European decision, CJEU, 6 May 2010, Xxxx Xxxx v. Clickair SA., C-63/09, ECLI:EU:C:2010:251. 117 Article 17 of the 1929 Warsaw Convention provides that: ‘The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger […]’; or in its authentic version: ‘Le transporteur est responsable du dommage survenu en cas de mort, de blessure ou de tout autre lésion corporelle subie par un voyageur […]’. The wording was slightly amended in the 1999 version and reads: ‘The carrier is liable for damage sustained in case of death or bodily injury of a passenger […]’. Xx. Xxxxxx Xxxxx-Dannery commented in 1933 that the word ‘injury’, which may be seen as redundant with the word ‘wounding’ in the 1929 text, reflected in reality the condition or aggravation that may have happened after the accident took place: ‘Lorsque la blessure ou la mort sont consécutives à l’accident, il n’y a pas de difficulté. Mais si le décès ou la nécessité d’une intervention chirurgicale se produisent postérieurement, c’est-à-dire après que la période de transport aérien est terminée, la responsabilité est exactement la même. L’emploi du terme “lésion” après ceux de mort et de blessure englobe et prévoit les cas de traumatismes ou de perturbations dont les conséquences ne se manifestent pas immédiatement dans l’organisme et dont la corrélation peut être établie avec l’accident’, in Xxxxxx Xxxxx-Xxxxxxx, La Convention de Varsovie et les règles du transport aérien international 62 (Xxxxxx, 1933). 118 ICAO Doc 7686, International Conference on Private Air Law, The Hague, September 1955, volume II, Documents, Montreal September 1956, p. 193. a passenger…’.119 However, as the proposal was not seconded, it did not reach the official discussion level and was therefore ignored. In light of emerging jurisprudence granting compensation for mental injury in certain cases, considerable discussions surrounded the topic during the preparation of the 1999 Montreal Convention.120 In one of the draft texts approved by the ICAO Legal Committee, it was suggested that Article 17 should be rephrased as follows: The carrier is liable for damage sustained in case of death or bodily or mental injury of a passenger upon condition only that the accident which caused the death or injury took place on board […].121 Despite this suggestion not being retained in the final draft submitted to the delegates, the fate of mental injury kept negotiators extremely busy throughout the 1999 Montreal Conference. In a joint comment, Norway and Sweden suggested the addition of the words ‘or mental injury’ in the draft text, noting that the exclusion of mental injury did not promote the unifica- tion of legal systems: The exclusion of mental injury does not promote unification of legal systems, which is one of the main objectives of this process. The reason for this is that the term ‘bodily injury’ is not construed in the same way in all legal systems. The present draft will therefore lead to different interpretation of the Convention in different stares. As a result the present draft may give rise to forum shopping.122 The United Kingdom also recommended inserting the following definition of mental injury: In this Article the term ‘mental injury’, in a case where there is no accompany- ing bodily injury, means an injury resulting in a mental impairment which has a significant adverse effect on the health of the passenger.123 The Minutes of the 1999 Montreal Conference report that, although in principle, adding mental injuries to the wording of the text was widely accepted, the practical repercussions were raised with serious concerns. 119 ICAO Doc 7686, International Conference on Private Air Law, The Hague, September 1955, volume I, Minutes, Montreal September 1956, p. 261. 120 The 1971 Guatemala City Protocol already replaced the word ‘bodily injury’ by ‘personal injury’, but never entered in force. 121 ICAO Doc 9775, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air), Montreal, 10 – 28 May 1999, volume III, Preparatory Material, Montreal 1999, p. 92. 122 ICAO Doc 9775, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air), Montreal, 10 – 28 May 1999, volume II, Documents, Montreal 1999, p. 97-98. 123 Ibid., p. 485. The observer of the International Union of Aerospace Insurers noted an important risk of fraud: Fear of flying was a well recognized phenomenon without significant parallel in other modes of transport and could be easily construed by sympathetic medical opinion as an injury. The existence, or otherwise, of mental injury was very dif- ficult to prove, giving rise to the possibility of fraud and expensive protracted litigation.124 He also emphasized that, while mental injuries were compensable in other modes of transport, these conventions established limited liability regimes,125 contrary to the 1999 Montreal Convention.126 Following many representatives’ interventions, the Chairman observed that the Travaux Préparatoires should clearly indicate the common position to be agreed on, in order to avoid distinct interpretations by Courts. His words, as quoted below, are very clear on this point: […] the Group had now almost begun a process of recognizing the following: that bodily injury would be covered; that bodily injury which resulted in mental injury would be covered; but that mental injury per se would only be covered where it had a substantial adverse effect on health. […] One additional thing that it was necessary for the Group to do was to make sure that the records of the proceedings clearly indicated what it was that the Group agreed to; that would be vital in enabling an understanding as to what it was that the language which was being used was intended to cover; it could not be left to the Courts to subse- quently interpret the text of Article 16, paragraph 1, independently of the Con- xxxxxxx’x ‘travaux préparatoires’.127 However, the question of mental injury was later integrated into a ‘draft consensus package’, which included, amongst others things, mechanisms for compensation and limits of liability. At the end of the package discus- sions, the final text communicated did not contain any reference to mental injury. Given the unexpected result of the package negotiations, the Chairman concluded in a rather vague way that no clear consensus had emerged as to whether moral/psychological injury should be included in the scope of the Convention: […] a considerable degree of reservation had been expressed by some Delega- tions about expressing mental injury in a form in which it would be independent of bodily injury, therefore suggesting that, to the extent that that was admissible, 124 ICAO Doc 9775, International Conference on Air Law (Convention for the Unification of Certain Rules for International Carriage by Air), Montreal, 10 – 28 May 1999, volume I, Minutes, Montreal 1999, p. 69. 125 Ibid., p. 69. 126 This point was also highlighted by Canada: ‘[…] the unfortunate situation was the regime of no-fault and unlimited liability which created a potential for abuse’, Ibid., p. 73. 127 Ibid., p. 116. it would be necessary to circumscribe it greatly. […] All had recognized that under the concept of bodily there were circumstances in which mental injury which was associated with bodily injury would indeed be recoverable and dam- ages paid therefor[e]. The Group had equally recognized that the jurisprudence in this area was still developing.128 The analysis shows that this lack of common agreement, as reported in the Travaux Préparatoires, may lead to a diversified jurisprudence that could jeopardize the purposes of the 1999 Montreal Convention.